Those who litigate in California state courts, take note: Changes are coming to the state’s summary judgment statute for the first time in 20 years. Assembly Bill 2049 (AB 2049), signed into law this summer, introduces logistical changes and clarifications to the summary judgment process that attorneys should be aware of before the law takes effect on January 1, 2025.
First, AB 2049 will change the notice period — and thus the timing — of summary judgment and summary adjudication motions. Code of Civil Procedure section 437c prescribes the timeline for summary judgment and summary adjudication motions. Under the longstanding statute: notice of a summary judgment or summary adjudication motion and supporting papers needed to be served at least 75 days before the hearing, oppositions were due at least 14 days before the hearing, and replies at least five days before the hearing.
AB 2049 will change this timeline. After the new year, the notice period for summary judgment and summary adjudication motions will be extended by six days, meaning motions and supporting papers will need to be served at least 81 days before they are heard. Opposition briefs and reply briefs will likewise be due earlier, with oppositions due at least 20 days before the hearing, and replies due at least 11 days before the hearing. Sponsors of the bill (including the California Judges Association, California Defense Counsel, and Conference of California Bar Associations), hope the extended timeline will help give judges more time to fully consider summary judgment motions after replies have been filed. In theory, this should serve to benefit defense counsel.
Second, AB 2049 clarifies parties’ ability to bring successive dispositive motions. It amends section 437c to clarify that parties are limited to one summary judgment motion, absent a court order granting an additional summary judgment motion upon a showing of good cause. While many courts already followed this practice, it will now be codified. Notably, however, AB 2049 also amends section 437c to expressly allow parties to bring any number of summary adjudication motions, meaning parties will still be able to have the courts adjudicate discrete issues and claims as new evidence comes to light. (More on this important distinction below.)
Third, in the new year, parties will be prohibited from introducing any new facts in a reply to an opposition, settling a question of interpretation on which courts have long been divided. While many California courts had already adopted this approach (see, e.g., United Community Church v. Garcin, 231 Cal. App. 3d 327, 337 (1991)), some had instead held that trial judges have discretion to consider new evidence in a reply if the opposing party had notice and an opportunity to respond (see, e.g., Wall Street Network, Ltd. v. New York Times Co., 164 Cal. App. 4th 1171, 1183 (2008)) or if a reply would “fill gaps” in the evidence created in an opposition. See Los Angeles Unified School District v. Torres Construction Corp., 57 Cal. App. 5th 480 (2020). AB 2049 seemingly attempts to reconcile these differences by codifying the principle that replies cannot contain new evidence or material facts, although it remains silent as to whether the courts maintain discretion to consider new evidence — an issue sure to be litigated early in 2025.
Now, what do these changes mean for California attorneys and those they represent?
First, parties will need to carefully consider when to bring their lone summary judgment motion and plan to complete the discovery they’ll need accordingly. Indeed, many defendants will now find it particularly prudent to wait until they have finished all of their anticipated fact discovery and as much work-up with experts as possible and have a complete picture of the evidence. Although the code does allow for a second summary judgment motion upon a showing of good cause, parties who take an early shot at summary judgment based on partial evidence may be unable to revisit it later.
Second, parties should take extra care to include all evidence they may need in their opening brief. While this was already prudent advice before AB 2049, failing to include critical evidence in an opening brief now carries a heightened risk of forfeiting the ability to address that evidence. Note that moving parties may still address evidence raised by an opposition in their reply, but they must be careful to avoid introducing new facts or evidence in doing so.
Finally, although section 437c(t) remains unchanged, counsel practicing in California should refresh their recollection of this important but underused procedural tool. As many litigators are aware, the code provides for typical summary adjudication motions that dispose of entire causes of action, affirmative defenses or issues of duty. We think this post offers an excellent opportunity to remind litigators to also review section 437c(t), which details a more obscure type of summary adjudication motion that disposes of discrete legal issues or claims for damages (other than punitive damages) but does not completely dispose of a cause of action, affirmative defense or issue of duty. This type of summary adjudication motion can be particularly valuable for party and judicial efficiency, as it may help facilitate settlement, or at least narrow the issues and claims to be litigated at trial.
Counsel should be aware, however, that a section 437c(t) summary adjudication motion comes with additional procedural requirements. A party who wishes to move for summary adjudication of a discrete legal issue or claim for damages under section 437c(t) must first submit: (1) a joint stipulation with opposing counsel stating the issues to be adjudicated, and (2) a declaration from each party that the anticipated motion will further judicial economy by decreasing trial time or increasing the likelihood of settlement. The court then has 15 days from receipt of the stipulation and declarations to decide if the motion may be filed, while nonstipulating parties have 10 days to object. If the court decides against permitting a summary adjudication motion under 437c(t), stipulating parties can always request an informal conference with the court to discuss the motion further. Given these additional procedural restrictions, parties planning to bring summary adjudication motions for discrete legal issues should review section 437c(t) and begin strategizing (and communicating with opposing counsel) early.
In summary, AB 2049 brings significant logistical and substantive changes to a key section of the civil procedure code that had previously been untouched for decades. Those who find themselves litigating in California state court would be wise to thoroughly review these changes before they take effect, and plan accordingly for the new summary judgment notice period and clarified briefing limitations.
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